Vaccinations, unfair dismissal and the band of reasonable responses

In the previous post “Vaccinations: can you make them compulsory?” we outlined the risks that employers might face if they decide to make vaccinations against coronavirus compulsory in the workplace. We have had a number of questions in response as to how an employer could enforce such a policy without being in breach of human rights or liable for unfair dismissal. 

To address these concerns the starting point appears to be the question whether the requirement for the vaccination is reasonable, or to put it another way, whether the employee’s refusal to comply is unreasonable. 

Unfortunately, it’s not going to be possible to answer that question with a simple ‘yes’ or ‘no’. The answer will depend on the particular circumstances surrounding the individual’s role and the type of work environment in which they are based.  

In recognition that different workplace settings will raise different safety concerns the Government Guidance ‘Working safely during coronavirus’ refers to 14 different types of workplace and has individual guides with recommendations for each. 

The one thing they all have in common is the requirement for the employer to carry out a risk assessment to ensure that the workplace is safe and in particular COVID secure. The same principles apply when considering whether vaccinations are reasonably required. 

Can all workplaces justify strict requirements? 

Not all workplaces will be able to justify a strict requirement that all employees have the vaccine. It is likely that other safety measures will continue to be in place until the pandemic is over (assuming that ever happens and we aren’t still in the same position in 12 months’ time!)  and for the majority of workplaces, we anticipate that should to be sufficient. In some workplace settings, a higher degree of risk of infection and transmission of the virus may be obvious, for example, a care home in comparison with an office. There may also be regulatory requirements that apply where an employee’s duties involve travel overseas. 

In all cases, the reasons why an employer considers vaccination is required for the particular role and setting will need to be clearly explained to the workforce. Equally, an employee’s reasons for being unwilling to be vaccinated will need to be given careful and sensitive consideration. As well as satisfying legal requirements, this is simply good employee relations.

If it is reasonably considered that the employee cannot safely or properly do their job without the vaccine that still does not mean that dismissal should inevitably follow. The next step will be for the employer to consider whether there are any potential changes that could be made to the role to reduce or eliminate the risks associated with the employee not having been vaccinated. Even where there are no such changes that could reasonably be made, the employer should then consider whether there may be any alternative roles available for the employee to do, whether temporarily or permanently.

What if there are no alternative roles? 

If there are no alternatives, and if following a fair process, in which the employer has fully explained the reasons the vaccination is required and given the employee an opportunity to respond, the conclusion is still that the employee cannot safely do their job, dismissal may be the only option. 

In our view, the only potentially fair reason that such a dismissal would be for would be “some other substantial reason”. If the employee has over two years’ service and brings a claim of unfair dismissal the test that the Employment Tribunal will need to apply is whether the employer acted in the ‘band of reasonable responses’ when dismissing the employee for that reason. That is a test unique to employment. Even if the Employment Tribunal considers that the employee’s dismissal was harsh or that it would not have dismissed the employee if it had been the employer in those circumstances, that does not matter. It does not make the dismissal unfair if it is still within that range of reasonable responses test.  

Will this not infringe the employee’s human rights?

Would it be a breach of the Human Rights Act 1998 (HRA)? Clearly, an employee cannot be forced to have a vaccination: an individual is entitled to refuse any medical procedure. However, the rights of others, for instance, customers of the employer also have to be taken into account, and from my perspective, the rights that an individual has under the HRA do not mean that an employer will be  prevented from stipulating that to be able to carry out certain roles in their organisation individuals have to have been vaccinated. 

The circumstances when an employer will be able to reasonably conclude that is the case may be rare in practice, but they will exist as even the protection of human rights need to be balanced against the rights of others. 

What about private sector employers? 

For private-sector employers, it is also difficult to see what claim an individual could seek to pursue under the HRA because that Act only applies to public sector organisations.  At most, it seems to me that the individual could seek to assert their HRA rights in an unfair dismissal claim in seeking to persuade an Employment Tribunal that it was obliged to consider the fairness of their dismissal in a way which was compatible with the HRA. If an Employment Judge was prepared to do this, it would still involve an assessment of the employer’s reasons for wanting that particular employee to have a vaccine, the employee’s reasons for not wanting to, and whether the decision to dismiss was in the range of reasonable responses.